A maternal grandfather unable to account for more than R500,000 intended for the care of his orphaned grandchildren has been stripped of his guardianship and given restricted access to the minors.
The “obstructive and defiant” man, along with his wife and co-guardian, arbitrarily denied the children's paternal relatives visitation rights and used the grandchildren as “pawns” during the marathon court case.
The Pretoria high court on Monday ruled in favour of the children's paternal uncle and his wife after an application brought by the couple when the children's care came under scrutiny.
None of the parties has been named to protect the children's identities.
The saga unfolded after the two young children, aged about 15 and nine, lost their parents just two years apart. Their mother died when the youngest child was just two years old and their father when the tot was four.
The latter, described as an “astute financial planner” by judge Anthony Millar in his ruling, “ensured that provision was made in his will for the care and wellbeing of his two children upon his death”.
The first was a trust set-up into which the children's inheritance was paid and would be administered by Absa Trust. Second, their maternal grandparents were appointed joint guardians and given “a right of habitation in the family home until such time as [the youngest] reached 18”.
“His will also went on to provide that in the event that if [either grandparents] could not or would not accept or continue acting as guardians, then in the alternative, he appointed his brother, the first applicant as their guardian.”
At the time of the father's death, the maternal grandparents were both in their 60s. The grandfather is now 74, while the grandmother died at the age of 67 earlier this year.
The court explained that the case had nothing to do with the financial and material arrangements made for the children, but rather “both guardianship [and] primary care and residence of the minors”.
This became a bone of contention when the children's maternal aunt moved into the family home, ostensibly to help the elderly grandparents care for the children.
This soon caused issues as the eldest child was moved out of her “bedroom with an en suite bathroom” to make way for her aunt. Additionally, the aunt's fiancé first became a regular visitor at the house and then a resident in 2021.
“When the applicants raised concerns with [the grandparents], their contact with the minor children was terminated.
“In consequence of their concerns about the wellbeing of the minor children and the termination of their contact with them, during November 2019, the applicants brought an urgent application. The application was brought in two parts,” Millar summarised.
There is nothing before the court explaining what happened to the surplus but having regard to the total payments received as against the expenses, this does not seem to have been either paid to the trust or held in credit for the benefit of the minor children.
— Pretoria high court judge Anthony Millar
The first was for the appointment of a curatrix ad litem, someone appointed to represent the children's interests in the matter, and to reinstate visitation rights while the second formed part of the present matter before the court.
After the grandparents failed in their appeal bid against the first ruling (handed down in 2020), a directive was issued in 2023 for the children to receive therapy and for the curatrix to get financial information from the grandparents.
The grandparents refused to comply with the order and directive and instead “terminated all contact between the minor children and the applicants [and] additionally, prevented the children from participating in the therapeutic process that had been ordered”.
After several court cases relating to this, the parties eventually reached an agreement and both visitation and the requested information were given.
The grandfather's conduct during litigation came under heavy scrutiny and prompted five reports from the curatrix.
“The reports detail the difficulties that were experienced to 'get to the bottom' of the matter. The curatrix concluded, in regard to her interim reports, that: 'The golden thread running through the interim reports is the obstruction and hindrance by the maternal grandparents of the orders granted by this court and the pending investigation by the curatrix.'
These included using their grandchildren as “pawns during litigation” by having one of them secretly record their therapy sessions as a way to “collect evidence” and having the same child record her younger sibling's “panic attack” over the prospect of spending time with the paternal relatives.
Another worrying finding made by the psychologists appointed to assess the children was the conduct of the aunt's partner, who “appeared inappropriately affectionate” towards the eldest child.
Regarding finances, it was discovered that the grandfather had “accumulated a surplus of R509,995" over three years. This was from payments made to his account for the children's expenses. They were broken down as follows:
- In 2021, R518,142 was paid out while expenses only amounted to R430,966. This left a surplus of R87,175 in the grandfather's control.
- In 2022, R561,868 was paid out while expenses added up to R262,411. This left a surplus of R299,457 in the grandfather's control.
- In 2023, R599,470 was paid out while expenses tallied up to R476,107. This left a surplus of R123,362 in the grandfather's control.
“There is nothing before the court explaining what happened to the surplus but having regard to the total payments received as against the expenses, this does not seem to have been either paid to the trust or held in credit for the benefit of the minor children,” Millar said.
“The absence of any explanation as to what has happened to the R509,995 surplus, makes it abundantly clear that [the grandfather] has not conducted himself in a manner that displays a proper understanding of the role of a guardian and in particular, a guardian’s fiduciary duty to protect the assets of the minor children for whom he is responsible.”
The grandfather was ultimately stripped of his guardianship role with immediate effect while the paternal uncle was appointed as his replacement. The children were also ordered to reside at his home, just 100 metres away from the maternal family's house.
“The maternal family may not have any direct or indirect contact with the minor children outside the family therapy context for two months from date of this order so that the minor children may settle in their new environment and receive the necessary family and individual therapy.
“After the period, the family therapist must confirm in writing to the applicants and the [grandfather] whether the minor children are ready for the maternal family to be reintroduced into their lives,” the court ruled.
The grandfather was also slapped with a costs order.
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